Lorenzo B. Brown,
Complainant,

v. 

Robert M. Gates,
Secretary,
Department of Defense,
(Department of Defense Education Activity),
Agency.

Appeal No. 0120103139

Agency No. PEFY10062

DECISION

Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 21, 2010, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. 

BACKGROUND

In his complaint, Complainant alleged that the Agency subjected him
to discrimination on the bases of race (Black) and reprisal for prior
protected EEO activity when:


1. On March 8, 2010, Complainant was placed on a Performance Improvement
Plan (PIP).

The Agency dismissed the claim for failure to state a claim on the
grounds that Complainant was not aggrieved by the Agency's action.
On appeal, Complainant argues that being placed on a PIP states a valid
claim of discrimination.  The Agency asks that we affirm the FAD.  

ANALYSIS AND FINDINGS

Following a review of the record, the Commission finds that the complaint
fails to state a claim of race discrimination under the EEOC regulations.
The instant complaint concerns the Agency's decision to place Complainant
on a performance improvement plan (PIP) in March 2010.  29 C.F.R. §
1614.107(a)(5) provides that an agency should dismiss a claim involving a
proposal to take a personnel action or other preliminary step to taking
a personnel action. The Commission has held that a PIP is a preliminary
step to taking a personnel action and, in most instances, by itself
does not constitute an adverse action sufficient to render an employee
aggrieved. Lopez v. Department of Agriculture, EEOC Appeal No. 01A04897
(November 1, 2000); Jackson v. Central Intelligence Agency, EEOC Request
No. 05931177 (June 23, 1994).

In the Section by Section Analysis that accompanied the 1992 issuance of
EEOC regulations at 29 C.F.R. Part 1614, the Commission explained that:

We intend . . . dismissal of complaints that allege discrimination in
any preliminary steps that do not, without further action, affect the
person; for example, progress reviews or improvement periods that are
not a part of any official file on the employee.

See 57 Fed. Reg. 12643 (April 10, 1992).

When determining whether a record is in "any official file on the
employee," the concern is "with official records which could be available
to personnel other than the personnel responsible for the challenged act."
Jackson, supra (citation omitted). There is nothing to show that the
PIP in this case is included in Complainant's official personnel record.
Therefore, we conclude that the record does not support a finding that
Complainant has stated a viable claim of race discrimination with regard
to the PIP.

However, Complainant has also alleged that he was placed on the
PIP in retaliation for engaging in prior protected EEO activity.
The Commission has a policy of considering reprisal claims with a
broad view of coverage.  See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000).  The anti-retaliation provisions
of the employment discrimination statutes seek to prevent an employer
from interfering with an employee's efforts to secure or advance
enforcement of the statutes' basic guarantees, and are not limited to
actions affecting employment terms and conditions.  Burlington Northern &
Santa Fe Railroad. Co. v. White, 548 U. S. ____, 126 S. Ct. 2405 (2006).
To state a viable claim of retaliation, Complainant must allege that:
1) s/he was subjected to an action which a reasonable employee would have
found materially adverse, and 2) the action could dissuade a reasonable
employee from making or supporting a charge of discrimination.  Id.
While trivial harms would not satisfy the initial prong of this inquiry,
the significance of the act of alleged retaliation will often depend
upon the particular circumstances.  See also, EEOC Compliance Manual,
No. 915.003 (May 20, 1998) (any adverse treatment that is based upon a
retaliatory motive and is reasonably likely to deter the charging party
or others from engaging in protected activity states a claim).  

Applying these standards to the instant matter, we conclude that
Complainant has stated a viable claim of unlawful retaliation which
requires further processing by the Agency, including an investigation.
Accordingly, the agency's final decision dismissing Complainant's
retaliation claim is reversed, and the matter is remanded to the Agency
for further processing pursuant to the following Order.

ORDER

The Agency is ordered to process the remanded claim (retaliation regarding
the PIP) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall
acknowledge to the Complainant that it has received the remanded claim
within thirty (30) calendar days of the date this decision becomes final.
The Agency shall issue to Complainant a copy of the investigative file
and also shall notify Complainant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the Complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of Complainant's request.

A copy of the Agency's letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013.  The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order.  29 C.F.R. §
1614.503(a).  The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement.  See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g).  Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action."  29 C.F.R. §§ 1614.407 and 1614.408.  A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:

1.	The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2.	The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013.  In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604.  The request or opposition must also include
proof of service on the other party.  

Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request.  Any supporting documentation
must be submitted with your request for reconsideration.  The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances.	See 29 C.F.R. § 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative
processing of your complaint.  However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision.  In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission.  If you file a civil action, you must name as the defendant
in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.  Filing a civil
action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0610)

If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security.  See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c).  The grant or denial of the request is within
the sole discretion of the Court.  Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
	

FOR THE COMMISSION:



______________________________
Carlton M. Hadden, Director
Office of Federal Operations

December 8, 2010
__________________
Date






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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013




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